How to Handle Reference Requests for Fired Employees
When you fire an employee and know that you will not be able to provide a positive reference for that person in the future, make sure to let them know. If the former employee can avoid listing you or your company on future employment applications, he or she will most certainly do so. No one wants to put down a negative reference source. Ideally, you and your company will never get a phone call inquiring about the former employee or the termination reasons. However, sometimes an employer fails to inform the person that the company will not serve as a good reference for various reasons (forgets, insufficient time, hostility, etc.), or the circumstances under which you are contacted are beyond the control of the former employee. If you or your company receives a phone call about someone you have fired, know what to do and say (and not say) to avoid exposing yourself and your company to potential liability.
Get the Facts
When someone calls for a reference, put them on hold until you have the ex-employee’s file in front of you. If you have kept good employment records, you should have all of the factual information you need. Having the employment file will also help you stick to “just the facts” and avoid saying something you should not.
Keep it Simple
This cannot be stressed enough. Say as little as possible to avoid giving information that could cause your former employee to pursue a lawsuit. Factual data such as the ex-employee’s job title, length of service and final salary figure are good pieces of information to disclose. If you choose to say anything else, keep your comments factual. Speculation or any information about the ex-employee that you can’t prove should be avoided at all times when giving a reference. If the prospective employer presses you for more information, tell the person that company policy prevents you from saying anything more than what you have already stated. That’s it, and politely hang up. If you follow this approach, you and your company will avoid possible legal ramifications 99% of the time.
Consider Revealing Serious Misconduct – But Carefully
While your policy might be to only reveal the employee’s name, job title and final salary amount, consider whether to reveal serious or criminal misconduct (workplace violence, theft, etc.), to protect you and your company. Another employer could file suit against you for covering up for an ex-employee, if the employee repeats the same behavior during their new employment and the new employer discovers that is why the person was terminated by you and your company. If you decide to reveal the misconduct, again, stick to the facts and keep it simple, disclosing the information in a calm and unemotional manner. Do not engage in gossip, banter back and forth or play “what ifs” with the potential employer. Remember, it is neither your job nor your responsibility to assist the potential employer make any decisions. Politely end the conversation.
Assign One Person to Give References
Because it is so important to be factual, brief and know when it is appropriate to give more information, assign a single person to handle reference calls. Doing so will help ensure that the information being disclosed is consistent. In addition, require that all reference requests are appropriately documented with a written information sheet detailing “who, what, when and where.” The information sheet should at a minimum identify who sought the reference, the date, the time, who provided the information and describe in specific detail the information disclosed by the company. This simple document may be very helpful if a lawsuit arises.
Have Employees Sign a Release
To better protect yourself and your company, consider asking all employees who leave your employment, voluntarily or otherwise, to sign a consent or release allowing you to disclose employment history and related information to prospective employers or persons conducting background checks. While a general consent document from the employee is better than nothing, the release agreement should probably be prepared by an attorney to ensure that it complies with the law and provides you and your company the broadest possible protection.